SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0019-PR
Respondent, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 09-0151 PRPC
BRAD ALAN BOWSHER, )
) Pima County
Petitioner. ) Superior Court
) Nos. CR20071229 and
) CR20074297
) (Consolidated)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Gus Aragon, Judge
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals Division Two
223 Ariz. 177, 221 P.3d 368 (2009)
VACATED
________________________________________________________________
BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson
By Jacob R. Lines, Deputy County Attorney
Attorneys for State of Arizona
ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER Tucson
By David J. Euchner
Attorneys for Brad Bowsher
________________________________________________________________
P E L A N D E R, Justice
¶1 The issue for decision is whether a trial court may
impose consecutive terms of probation on a defendant convicted
of unrelated offenses. We hold that Arizona Revised Statutes
(“A.R.S.”) section 13-903(A) (2010) authorizes that disposition.
I.
¶2 Bowsher was charged in two separate indictments with
ten felonies. Pursuant to a plea agreement, he pleaded guilty
to one count of theft by control in each case; each count
involved a different victim and event. The trial court placed
Bowsher on probation for four years in both matters and ordered
the probation terms to be served consecutively. Bowsher
petitioned for post-conviction relief, arguing that the trial
court lacked authority to impose consecutive terms of probation.
The superior court denied relief.
¶3 The court of appeals granted review but also denied
relief. State v. Bowsher, 223 Ariz. 177, 177 ¶ 4, 221 P.3d 368,
368 (App. 2009). The court rejected Bowsher’s argument that
consecutive terms of probation were forbidden by State v.
Pakula, 113 Ariz. 122, 547 P.2d 476 (1976), relying on our
statement in State v. Jones, 124 Ariz. 24, 26, 601 P.2d 1060,
1062 (1979), that Pakula must “be strictly limited to cases
wherein there is one indictment involving multiple counts.”
Bowsher, 223 Ariz. at 178 ¶ 8, 221 P.3d at 369.
¶4 We granted review to address a recurring issue of
statewide importance and to resolve the possible tension between
Pakula and Jones. We have jurisdiction under Article 6, Section
5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).
2
II.
¶5 We review for abuse of discretion a trial court’s
denial of a petition for post-conviction relief, State v.
Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990), but review
issues of law de novo, State v. Pandeli, 215 Ariz. 514, 522
¶ 11, 161 P.3d 557, 565 (2007).
¶6 Trial courts have no inherent authority to suspend a
prison sentence and impose probation. State v. Bigelow, 76
Ariz. 13, 18, 258 P.2d 409, 412 (1953). Rather, such power
“must be found in the statutes of the state.” Id.
¶7 Section 13-903(A) states, “A period of probation
commences on the day it is imposed or as designated by the
court, and an extended period of probation commences on the day
the original period lapses” (emphasis added). The word “or”
generally means “[a] disjunctive particle used to express an
alternative or to give a choice of one among two or more
things.” Black’s Law Dictionary 1095 (6th ed. 1990); see also
North Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz.
301, 306 ¶ 26, 93 P.3d 501, 506 (2004) (concluding that
statutory use of disjunctive “or” when “[p]lainly read” suggests
alternatives among listed items). Because § 13-903(A) is
written in the disjunctive, it allows trial courts to begin a
probation term either on the date the defendant is sentenced or
on another day designated by the judge. The statute thus does
3
not on its face prevent the judge from imposing consecutive
probation terms.
¶8 Interpreting the phrase “or as designated by the
court” in § 13-903(A) to allow consecutive terms of probation is
also consistent with the statute’s history. The Legislature
enacted § 13-903 in 1978 as part of its comprehensive revision
of Arizona’s criminal statutes. In that new section, the
Legislature adopted language recommended by the Arizona Criminal
Code Commission in its 1975 proposed draft for the new criminal
code. See Arizona Criminal Code Commission, Arizona Revised
Criminal Code, at § 802(a) (1975).
¶9 The Commission and the Legislature generally relied on
the Model Penal Code (“MPC”) in drafting Arizona’s revised
criminal statutes. See State v. Cox, 217 Ariz. 353, 356 ¶ 16,
174 P.3d 265, 268 (2007); State v. Mott, 187 Ariz. 536, 540, 931
P.2d 1046, 1050 (1997); 1 Rudolph J. Gerber, Criminal Law of
Arizona 1-2 (2d ed. 1993) (noting the Commission’s “research[]”
into the MPC). The MPC explicitly requires probation terms to
run concurrently:
When a defendant is sentenced for more than one offense or
a defendant already under sentence is sentenced for another
offense committed prior to the former sentence[,]
. . . multiple periods of suspension or probation shall run
concurrently from the date of the first such disposition[.]
Model Penal Code § 7.06(6)(b) (Official Draft 1962) (emphasis
added).
4
¶10 The Commission, however, did not recommend adoption of
that MPC section. And, although the Legislature adopted many
MPC provisions, it chose to not enact that one, instead opting
for the language in § 13-903(A).1 The Legislature’s action
“evidences its rejection” of the MPC section. See Mott, 187
Ariz. at 540, 931 P.2d at 1050 (noting the Legislature declined
to adopt the MPC’s defense of diminished capacity “when
presented with the opportunity to do so”); see also State v.
King, 225 Ariz. 87, ___ ¶ 11, 235 P.3d 240, 243 (2010)
(concluding that Arizona adopted an objective standard for self-
defense rather than the MPC’s subjective standard).
¶11 Although § 13-903(A) does not explicitly provide for
consecutive terms of probation, our interpretation of its
language is the most plausible.2 Because multiple probation
1
The 1970 Study Draft of a New Federal Criminal Code mirrored
the MPC, providing that multiple probation periods, “whether
imposed at the same time or at different times, shall run
concurrently.” The National Commission on Reform of Federal
Criminal Laws, Study Draft of a New Federal Criminal Code, at
§ 3104(1) (1970). Unlike Arizona, other states chose to adopt
that requirement. E.g., Ark. Code Ann. § 5-4-307(b)(1) (West
2010); Conn. Gen. Stat. Ann. § 53a-31(a) (2010); Mo. Ann. Stat.
§ 559.036(1) (2010); N.C. Gen. Stat. § 15A-1346(a) (West 2010).
Current federal law also requires multiple probation terms to
run concurrently. 18 U.S.C. § 3564(b) (2006).
2
In other statutes, the Legislature has expressly precluded or
prescribed consecutive sentences. See A.R.S. § 13-116 (2010)
(“An act or omission which is made punishable in different ways
by different sections of the laws may be punished under both,
but in no event may sentences be other than concurrent.”);
A.R.S. § 13-711(A) (2010) (providing that “if multiple sentences
5
terms can run only concurrently or consecutively, forbidding
consecutive terms of probation would be tantamount to mandating
that multiple probation terms run concurrently. Thus,
interpreting Arizona’s probation statutes as not authorizing
consecutive terms of probation effectively reads into the
statutes the same concurrent-term mandate the Legislature
declined to adopt from the MPC. We cannot usurp the
Legislature’s prerogative in that fashion on matters within its
exclusive domain. See State v. Casey, 205 Ariz. 359, 362 ¶ 10,
71 P.3d 351, 354 (2003).
¶12 Bowsher argues the phrase “as designated by the court”
in § 13-903(A) must be read in conjunction with A.R.S. § 13-
901(A) (2010), which states a probation period shall begin
“without delay.” According to Bowsher, § 13-901(A) requires a
probation term to commence the day it is imposed unless some
other rule or statute prevents the term from beginning then.
For example, A.R.S. § 13-903(E) provides that when a term of
probation is imposed on one already serving a prison sentence,
probation does not commence until the prison sentence is served.
of imprisonment are imposed on a person at the same time, the
sentence or sentences imposed by the court shall run
consecutively unless the court expressly directs otherwise”).
That the Legislature has specifically directed or barred
consecutive sentences in other circumstances, however, does not
undermine the statutory authorization for consecutive probation
terms created by the disjunctive, discretionary language the
Legislature deliberately chose to use in § 13-903(A).
6
Only in such instances, Bowsher contends, does the option of “as
designated by the court” apply, allowing the judge to set an
alternate start date.
¶13 We disagree with this reading for two reasons. First,
no legislative history supports limiting the words “as
designated by the court” in the way Bowsher argues; indeed, the
history cited above expressly suggests that the Legislature
meant to authorize consecutive terms of probation. Second,
Bowsher’s proposed literal interpretation of the phrase “without
delay” in § 13-901(A) unduly limits the phrase “as designated by
the court” in § 13-903(A).3 Because delay occurs any time a
judge designates a start date different from the date the
probation is imposed, Bowsher’s interpretation would deprive
trial judges of the choice explicitly granted by § 13-903(A).
¶14 When construing two statutes, this Court will read
them in such a way as to harmonize and give effect to all of the
provisions involved. Pima County ex rel. City of Tucson v. Maya
Constr. Co., 158 Ariz. 151, 155, 761 P.2d 1055, 1059 (1988).
The Legislature presumably would not have framed § 13-903(A) in
the disjunctive had it meant the phrase “without delay” in § 13-
3
In upholding a probation term that ran consecutively to a
prison sentence, the court of appeals refused to interpret
“without delay” literally. See State v. Ball, 157 Ariz. 382, 384-
85, 758 P.2d 653, 655-56 (App. 1988) (stating the phrase
“without delay” in § 13-901(A) “cannot be literally read to mean
that all probations which are imposed must begin immediately”).
7
901(A) to invariably require a probation term to begin on the
day it is imposed except as otherwise expressly provided by law.4
We hold that § 13-903(A) authorizes trial courts to impose
consecutive terms of probation.
III.
¶15 In urging a contrary conclusion, Bowsher relies
largely on Pakula, in which this Court found “no specific
authority for consecutive terms of probation,” 113 Ariz. at 125,
547 P.2d at 479, and Jones, which stated that the Court “[did]
not retreat from” Pakula’s holding “that consecutive sentences
of probation are unlawful.” 124 Ariz. at 27, 601 P.2d at 1063.
We find Pakula obsolete and the dictum in Jones neither
controlling nor persuasive.
¶16 In Pakula, the defendant was charged in one
information with eleven counts. 113 Ariz. at 123, 547 P.2d at
477. The trial court sentenced him to prison on the first count
and imposed consecutive three-year terms of probation on each
remaining count. Id. This Court held that the sentence was
unlawful because, among other things, no statute permitted the
4
Harmonizing the two statutes, we conclude that the authority
granted in § 13-903(A) to impose consecutive terms of probation
is limited by the “without delay” provision in § 13-901(A), such
that the trial court does not have unfettered discretion to
postpone the onset of probation indefinitely into the future.
For example, a judge seeking to impose two consecutive probation
terms must designate that the second term begins immediately
after the first term ends.
8
superior court, “on multiple counts in the same information, to
impose consecutive periods of probation,” id. at 124, 547 P.2d
at 478, or a period of probation after a prison term. Id. at
125, 547 P.2d at 479.
¶17 Pakula, however, predated the Legislature’s 1978
overhaul of Arizona’s criminal code, including enactment of
A.R.S. § 13-903. That case therefore provides no aid in
interpreting the current statute.
¶18 In Jones, we held that a trial court, when sentencing
a defendant on different counts in separate indictments, may
simultaneously impose a prison term on one count, followed by
probation on the second. 124 Ariz. at 25-26, 601 P.2d at 1061-
62. Jones “strictly limited [Pakula’s rationale] to cases
wherein there is one indictment involving multiple counts”
because, when multiple indictments exist, “one judge may do in
each of the separate indictments what two judges could do at
different times with the same separate indictments.” Id. at 26,
601 P.2d at 1062.
¶19 Our statement in Jones that we “[did] not retreat
from” Pakula’s holding “that consecutive sentences of probation
are unlawful,” id. at 27, 601 P.2d at 1063, plainly was dictum.
The trial court in Jones sentenced the defendant to a prison
term, followed by probation. Id. at 25, 601 P.2d at 1061. More
importantly, the Court suggested in Jones that Pakula was
9
illogical, noting that “[t]here is logically no reason why a
judge should not be able to do in one two-count indictment what
he could also do in two one-count indictments.” Id. at 26, 601
P.2d at 1062.
¶20 We now recognize that the Jones dictum was incorrect -
§ 13-903(A) allows imposition of consecutive terms of probation
whether or not the charges are made in the same indictment.
Moreover, Jones did not expressly recognize that the criminal
code had been revised since Pakula. The court of appeals did
not err in relying on our prior cases here. But, in order to
avoid future confusion, we today expressly disavow the Jones
dictum and hold that trial courts have discretion to make terms
of probation consecutive, whether or not the charges on which
the convictions are based were in the same indictment or
separate indictments.
IV.
¶21 Our conclusion comports not only with the most
reasonable reading of § 13-903(A), but also with public policy
considerations. In sentencing a defendant for multiple
convictions, trial judges might seek to impose a distinct
sanction for each count. If trial courts cannot achieve that
effect by using consecutive terms of probation, they could be
forced to combine a prison sentence with subsequent probation,
as Jones allows, even though they otherwise would not have
10
sentenced the defendant to a prison term at all. This result
needlessly increases the state’s prison population and is
contrary to the rehabilitative goals of the probation statutes.
See State v. Smith, 112 Ariz. 416, 419, 542 P.2d 1115, 1118
(1975) (recognizing probation as “a sentencing alternative which
a court may use in its sound judicial discretion when the
rehabilitation of the defendant can be accomplished with
restrictive freedom rather than imprisonment”). In addition, a
rule that consecutive probation terms may only be imposed where
multiple offenses are charged in separate indictments might
undesirably discourage the consolidation of charges, even when
otherwise warranted by concerns for judicial economy or
practicality.
¶22 Bowsher argues that allowing consecutive terms of
probation could lead to the “absurd result” of judges stacking a
large number of such terms, creating what is essentially a
lifetime probation term. But the Legislature has already
authorized lifetime probation terms for certain offenses. See
A.R.S. § 13-902(E). And if the Legislature was concerned with
this prospect, it could have adopted the MPC’s explicit
concurrent-term requirement.
V.
¶23 Finally, Bowsher argues that if the law now allows
consecutive probationary terms, contrary to Pakula, that change
11
was unforeseeable and, therefore, cannot be retroactively
applied to him without violating due process. Cf. State v.
Womble, 225 Ariz. 91, ___ ¶¶ 24-32, 235 P.3d 244, 251-53 (2010)
(holding that application of rule allowing elimination of
witness to another crime to form exclusive basis for finding of
aggravating factor under A.R.S. § 13-751(F)(6) (2010) was not
unforeseeable and retroactive change in the law). But in light
of the Legislature’s post-Pakula enactment of § 13-903(A), any
reliance on that case is unavailing. Nor can Bowsher claim
reliance on the Jones dictum, because that case limited Pakula
and clearly implied that a trial court could legally impose
consecutive terms of probation for offenses charged under two
separate indictments. That is precisely what occurred here.
VI.
¶24 For the reasons stated above, we vacate the court of
appeals’ opinion and affirm the trial court’s order denying
post-conviction relief.
_____________________________________
A. John Pelander, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
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_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
James A. Soto, Presiding Judge*
* Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable James A. Soto, Presiding Judge of the Santa Cruz
County Superior Court, was designated to sit on this matter.
13